Palmore v. United States, 411 U.S. 389 (1973)

8/17/2019 Palmore v. United States, 411 U.S. 389 (1973)

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411 U.S. 389

93 S.Ct. 1670

36 L.Ed.2d 342

Roosevelt F. PALMORE, Appellant,

v.UNITED STATES.

No. 72—11.

Argued Feb. 21, 1973.

Decided April 24, 1973.

Syllabus

Palmore was convicted of a felony in violation of the District of Columbia

Code by the Superior Court of the District of Columbia. The District of

Columbia Court of Appeals, rejecting Palmore's contention that he was

entitled to be tried by an Art. III judge with lifetime tenure and salary

protection, affirmed, concluding that under the plenary power to legislate

for the District of Columbia conferred by Art. I, § 8, cl. 17, of theConstitution, Congress had 'constitutional power to proscribe certain

criminal conduct only in the District and to select the appropriate court,

whether it is created by virtue of article III or article I, to hear and

determine . . . particular criminal cases within the District.' Palmore seeks

to invoke this Court's appellate jurisdiction on the basis of 28 U.S.C. §

1257(2), which provides for an appeal to this Court from a final judgment

upholding the validity of 'a statute of any state' against a claim that it is

repugnant to the Constitution. Held:

1. The District of Columbia Code is not a state statute for purposes of §

1257(2), and the lower court's upholding of the federal statute is therefore

not reviewable by appeal but by certiorari. Pp. 394—397.

2. Not every judicial proceeding that implicates a charge, claim, or

defense based on an Act of Congress or a law made under its authority

must be presided over by an Art. III judge. Pp. 397 410.

(a) The jurisdictional grant respecting 'such inferior Courts as the

Congress may from time to time ordain and establish' requires neither that

only Art. III courts hear and decide cases within the judicial power of the


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United States nor that each inferior court be invested with all the

jurisdiction flowing from Art. III, and federal criminal laws have been

enforced by state, territorial, and military courts and judges who did not

enjoy the Art. III protections. Pp. 397—404.

(b) The strictly local court system consisting of the Superior Court and the

Court of Appeals for the District of Columbia was created by the Districtof Columbia Court Reform and Criminal Procedure Act of 1970 pursuant

to Congress' plenary Art. I power to legislate for the District of Columbia,

and was intended to relieve the Art. III courts of the burdens of local civil

and criminal litigation. O'Donoghue v. United States, 289 U.S. 516, 53

S.Ct. 740, 77 L.Ed. 1356, distinguished. Pp. 405—407.

Appeal dismissed and certiorari granted in part; 290 A.2d 573, affirmed.

Frank F. Flegal, Washington, D.C., for appellant.

Sol. Gen. Erwin N. Griswold, for appellee.

Mr. Justice WHITE delivered the opinion of the Court.

1 Aside from an initial question of our appellate jurisdiction under 28 U.S.C. §

1257(2), this case requires us to decide whether a defendant charged with afelony under the District of Columbia Code may be tried by a judge who does

not have protection with respect to tenure and salary under Art. III of the

Constitution. We hold that under its Art. I, § 8, cl. 17, power to legislate for the

District of Columbia, Congress may provide for trying local criminal cases

before judges who, in accordance with the District of Columbia Code, are not

accorded life tenure and protection against reduction in salary. In this respect,

the position of the District of Columbia defendant is similar to that of the

citizen of any of the 50 States when charged with violation of a state criminallaw: Neither has a federal constitutional right to be tried before judges with

tenure and salary guarantees.

2 * The facts are uncomplicated. In January 1971, two officers of the District of

Columbia Metropolitan Police Department observed a moving automobile with

license tags suggesting that it was a rented vehicle. Although no traffic or other

violation was then indicated, the officer stopped the vehicle for a spot-check of

the driver's license and carrental agreement. Palmore, the driver of the vehicle, produced a rental agreement from the glove compartment of the car and

explained why the car appeared to be, but was not, overdue. During this time,

one of the officers observed the hammer mechanism of a gun protruding from


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II

under the armrest in the front seat of the vehicle. Palmore was arrested and later

charged with the felony of carrying an unregistered pistol in the District of

Columbia after having been convicted of a felony, in violation of the District of

Columbia Code, § 22—3204 (1967).1 He was tried and found guilty in the

Superior Court of the District of Columbia.

3 Under Title I of the District of Columbia Court Reform and Criminal ProcedureAct of 1970, 84 Stat. 473 (Reorganization Act),2 the judges of the Superior

Court are appointed by the President and serve for terms of 15 years. D.C.Code

Ann. §§ 11—1501(a), 11—1502 (Supp. V, 1972).3 Palmore moved to dismiss

the indictment against him, urging that only a court 'ordain(ed) and

established(ed)' in accordance with Art. III of the United States Constitution

could constitutionally try him for a felony prosecution under the District of

Columbia Code. He also moved to suppress the pistol as the fruit of an illegal

search and seizure. The motions were denied in the Superior Court, andPalmore was convicted.

4 The District of Columbia Court of Appeals affirmed concluding that under the

plenary power to legislate for the District of Columbia, conferred by Art. I, § 8,

cl. 17, of the Constitution, Congress had 'constitutional power to proscribe

certain criminal conduct only in the District and to select the appropriate court,

whether it is created by virtue of article III or article I, to hear and determine

these particular criminal cases within the District.' 290 A.2d 573, 576—577(1972). Palmore filed a notice of appeal with the District of Columbia Court of

Appeals and his jurisdictional statement here, purporting to perfect an appeal

under 28 U.S.C. § 1257(2). We postponed further consideration of our

jurisdiction to review this case by way of appeal to the hearing on the merits.

409 U.S. 840, 93 S.Ct. 66, 34 L.Ed.2d 79 (1972).

5 Title 28 U.S.C. § 12574 specifies the circumstances under which the final

judgments of the highest court of a State may be reviewed in this Court by way

of appeal or writ of certiorari. As amended in 1970 by § 172(a)(1) of the

Reorganization Act, 84 Stat. 590, the term 'highest court of a State' as used in §

1257 includes the District of Columbia Court of Appeals. Appeal lies from such

courts only where a statute of the United States is struck down, 28 U.S.C. §

1257(1), or where a statute of a State is sustained against federal constitutional

attack, id., § 1257(2). Because the statute at issue was upheld in this case, anappeal to this Court from that judgment lies only if the statute was a 'statute of

any state' within the meaning of § 1257(2). Palmore insists that it is, but we

cannot agree.


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6 The 1970 amendment to § 1257 plainly provided that the District of Columbia

Court of Appeals should be treated as the 'highest court of a State,' but nowhere

in § 1257, or elsewhere, has Congress provided that the words 'statute of any

state,' as used in § 1257(2), are to include the provisions of the District of

Columbia Code. A reference to 'state statutes' would ordinarily not include

provisions of the District of Columbia Code, which was enacted, not by a state

legislature, but by Congress, and which applies only within the boundaries of the District of Columbia. The District of Columbia is constitutionally distinct

from the States, Hepburn & Dundas v. Ellzey, 2 Cranch 445, 2 L.Ed. 332

(1805); cf. National Mutual Ins. Co. of Dist. of Col. v. Tidewater Transfer Co.,

337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949). Nor does it follow from the

decision to treat the District of Columbia Court of Appeals as a state court that

the District Code was to be considered a state statute for the purposes of §

1257. We are entitled to assume that in amending § 1257, Congress legislated

with care, and that had Congress intended to equate the District Code and statestatutes for the purposes of § 1257, it would have said so expressly, and not left

the matter to mere implication.5

7 Jurisdictional statutes are to be construed 'with precision and with fidelity to the

terms by which Congress has expressed its wishes,' Cheng Fan Kwok v. INS,

392 U.S. 206, 212, 88 S.Ct. 1970, 1974, 20 L.Ed.2d 1037 (1968); and we are

particularly prone to accord 'strict construction of statutes authorizing appeals'

to this Court. Fornaris v. Ridge Tool Co., 400 U.S. 41, 42 n. 1, 91 S.Ct. 156,157, 27 L.Ed.2d 174 (1970). We will not, therefore, hold that Congress

intended to treat the District of Columbia Code as a state statute for the

purposes of § 1257(2). Cf. Farnsworth v. Territory of Montana, 129 U.S. 104,

112—114, 9 S.Ct. 253, 254 255, 32 L.Ed. 616 (1889).

8 Palmore relies on Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed.

627 (1922), where an enactment of the territorial legislature of Puerto Rico was

held to be a statute of a State within the meaning of the then-applicablestatutory provisions governing appeals to this Court. That result has been

codified in 28 U.S.C. § 1258; but, even so, the Balzac rationale was severely

undermined in Fornaris, where we held that a statute passed by the legislature

of Puerto Rico is not 'a State statute' within the meaning of 28 U.S.C. §

1254(2), and that it should not be treated as such in the absence of more

definitive guidance from Congress.

9 We conclude that we do not have jurisdiction of the appeal filed in this case.Palmore presents federal constitutional issues, however, that are reviewable by

writ of certiorari under § 1257(3); and treating the jurisdictional statement as a

petition for writ of certiorari, cf. 28 U.S.C. § 2103, we grant the petition limited


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III

to the question of whether Palmore was entitled to be tried by a court ordained

and established in accordance with Art. III, § 1, of the Constitution.6 It is to this

issue that we now turn.

10 Art. I, § 8, cl. 17, of the Constitution provides that Congress shall have power '(t)o exercise exclusive Legislation in all Cases whatsoever, over' the District of

Columbia. The power is plenary. Not only may statutes of Congress of

otherwise nationwide application be applied to the District of Columbia, but

Congress may also exercise all the police and regulatory powers which a state

legislature or municipal government would have in legislating for state or local

purposes. Congress 'may exercise within the District all legislative powers that

the legislature of a state might exercise within the State, and may vest and

distribute the judicial authority in and among courts and magistrates, andregulate judicial proceedings before them, as it may think fit, so long as it does

not contravene any provision of the constitution of the United States.' Capital

Traction Co. v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 582, 43 L.Ed. 873 (1899).

This has been the characteristic view in this Court of congressional powers with

respect to the District.7 It is apparent that the power of Congress under Clause

17 permits it to legislate for the District in a manner with respect to subjects

that would exceed its powers, or at least would be very unusual, in the context

of national legislation enacted under other powers delegated to it under Art. I, §8. See Gibbons v. District of Columbia, 116 U.S. 404, 408, 6 S.Ct. 427, 429, 29

L.Ed. 680 (1886).

11 Pursuant to its Clause 17 authority, Congress has from time to time enacted

laws that compose the District of Columbia Code. The 1970 Reorganization

Act amended the Code by creating the Superior Court of the District of

Columbia and the District of Columbia Court of Appeals, the courts being

expressly 'established pursuant to article I of the Constitution.' D.C.Code Ann.§ 11 101(2) (Supp. V, 1972). See n. 2, supra. The Superior Court, among other

things, was vested with jurisdiction to hear criminal cases involving alleged

violations of the criminal laws applicable only to the District of Columbia, id., §

11—923; the District of Columbia Court of Appeals, with jurisdiction to hear

appeals in such cases. Id., § 11—721. At the same time, Congress exercised its

powers under Art. I, § 8, cl. 9, and Art. III to redefine the jurisdiction of the

United States District Court for the District of Columbia and the United States

Court of Appeals for the District of Columbia Circuit. Id., §§ 11—301, 11— 501, and 11—502. As the Committee on the District of Columbia said,

H.R.Rep.No.91 907, p. 44:


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12 'This title makes clear (section 11—101) that the District of Columbia Courts

(the District of Columbia Court of Appeals, and the Superior Court of the

District of Columbia) are Article I courts, created pursuant to Art. I, section 8

clause 17 of the United States Constitution, and not Article III courts. The

authority under which he local courts are established has not been statutorily

provided in prior law; the Supreme Court of the United States has not declared

the local system to be either Article I or Article III courts, decisions having

indicated that the District of Columbia courts are, in this respect, both fish and

fowl. This expression of the intent of the Congress clarifies the status of the

local courts.'

13 It was under the judicial power conferred on the Superior Court by the 1970

Reorganization Act that Palmore was convicted of violation of § 22—3204 of

the District of Columbia Code (1967). The conviction was clearly within the

authority granted Congress by Art. I, § 8, cl. 17, unless, as Palmore contends,

Art. III of the Constitution requires that prosecution for District of Columbia

felonies must be presided over by a judge having the tenure and salary

protections provided by Art. III.8 Palmore's argument is straightforward: Art. III

vests the 'judicial Power' of the United States in courts with judges holding

office during good behavior and whose salary cannot be diminished; the

'judicial Power' that these courts are to exercise 'shall extend to all Cases, in

Law and Equity, arising under this Constitution, the Laws of the United States,

and Treaties made, or which shall be made, under their Authority . . .'; theDistrict of Columbia Code, having been enacted by Congress, is a law of the

United States; his prosecution for violation of § 22—3204 of the Code is

therefore a case arising under the laws of the United States, involves an

exercise of the 'judicial Power' of the United States, and must therefore be tried

by an Art. III judge.

14 This position ultimately rests on the proposition that an Art. III judge must

preside over every proceeding in which a charge, claim, or defense is based on

an Act of Congress or a law made under its authority. At the very least, it

asserts that criminal offenses under the laws passed by Congress may not be

prosecuted except in courts established pursuant to Art. III. In our view,

however, there is no support for this view in either constitutional text or in

constitutional history and practice.

15 Article III describes the judicial power as extending to all cases, among others,arising under the laws of the United States; but, aside from this Court, the

power is vested 'in such inferior Courts as the Congress may from time to time

ordain and establish.' The decision with respect to inferior federal courts, as


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well as the task of defining their jurisdiction, was left to the discretion of

Congress. That body was not constitutionally required to create inferior Art. III

courts to hear and decide cases within the judicial power of the United States,

including those criminal cases arising under the laws of the United States. Nor,

if inferior federal courts were created, was it required to invest them with all the

jurisdiction it was authorized to bestow under Art. III. '(T)he judicial power of

the United States . . . is (except in enumerated instances, applicable exclusivelyto this court) dependent for its distribution and organization, and for the modes

of its exercise, entirely upon the action of Congress, who possess the sole

power of creating the tribunals (inferior to the Supreme Court) . . . and of

investing them with jurisdiction either limited, concurrent, or exclusive, and of

withholding jurisdiction from them in the exact degrees and character which to

Congress may seem proper for the public good.' Cary v. Curtis, 3 How. 236,

245, 11 L.Ed. 576 (1845).9 Congress plainly understood this, for until 1875

Congress refrained from providing the lower federal courts with generalfederal-question jurisdiction. Until that time, the state courts provided the only

forum for vindicating many important federal claims. Even then, with

exceptions, the state courts remained the sole forum for the trial of federal cases

not involving the required jurisdictional amount, and for the most part retained

concurrent jurisdiction of federal claims properly within the jurisdiction of the

lower federal courts.

16 It was neither the legislative nor judicial view, therefore, that trial and decisionof all federal questions were reserved for Art. III judges. Nor, more particularly

has the enforcement of federal criminal law been deemed the exclusive

province of federal Art. III courts. Very early in our history, Congress left the

enforcement of selected federal criminal laws to state courts and to state court

judges who did not enjoy the protections prescribed for federal judges in Art.

III. See Warren, Federal Criminal Laws and the State Courts, 38 Harv.L.Rev.

545, 551—553, 570—572 (1925); F. Frankfurter & J. Landis, The Business of

the Supreme Court 293 (1927); Note, Utilization of State Courts to EnforceFederal Penal and Criminal Statutes: Development in Judicial Federalism, 60

Harv.L.Rev. 966 (1947). More recently, this Court unanimously held that

Congress could constitutionally require state courts to hear and decide

Emergency Price Control Act cases involving the enforcement of federal penal

laws; the fact 'that Rhode Island has an established policy against enforcement

by its courts of statutes of other states and the United States which it deems

penal, cannot be accepted as a 'valid excuse." Testa v. Katt, 330 U.S. 386, 392,

67 S.Ct. 810, 814, 91 L.Ed. 967 (1947). Although recognizing the contrarysentiments expressed in Prigg v. Pennsylvania, 16 Pet. 539, 615—616, 10 L.Ed.

1060 (1842), and other cases, the sense of the Testa opinion was that it merely

reflected longstanding constitutional decision and policy represented by such


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cases as Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833 (1876), and Mondou

v. New York N.H. & H.R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327 (1912).

17 It is also true that throughout our history, Congress has exercised its power

under Art. IV to 'make all needful Rules and Regulations respecting the

Territory or other Property belonging to the United States' by creating territorial

courts and manning them with judges appointed for a term of years. Thesecourts have not been deemed subject to the strictures of Art. III, even though

they characteristically enforced not only the civil and criminal laws of Congress

applicable throughout the United States, but also the laws applicable only

within the boundaries of the particular territory. Speaking for a unanimous

Court in American Ins. Co. v. Canter, 1 Pet. 511, 7 L.Ed. 242 (1828). Mr. Chief

Justice Marshall held that the territorial courts of Florida, although not Art. III

courts, could hear and determine cases governed by the admiralty and maritime

law that ordinarily could be heard only by Art. III judges. '(T)he samelimitation does not extend to the territories. In legislating for them, Congress

exercises the combined powers of the general, and of a state government.' Id., at

546. This has been the consistent view of this Court.10 Territorial courts,

therefore, have regularly tried criminal cases arising under the general laws of

Congress,11 as well as those brought under territorial laws.12

18 There is another context in which criminal cases arising under federal statutes

are tried, and defendants convicted, in non-Art. III courts. Under its Art. I, § 8,cl. 14, power '(t)o make Rules for the Government and Regulation of the land

and naval Forces,' Congress has declared certain behavior by members of the

Armed Forces to be criminal and provided for the trial of such cases by court-

martial proceedings in the military mode, not by courts ordained and

established under Art. III. Within their proper sphere, courts-martial are

constitutional instruments to carry out congressional and executive well. Dynes

v. Hoover, 20 How. 65, 79, 82, 15 L.Ed. 838 (1857). The 'exigencies of

military discipline require the existence of a special system of military courts inwhich not all of the specific procedural protections deemed essential in Art. III

trials need apply,' O'Callahan v. Parker, 395 U.S. 258, 261, 89 S.Ct. 1683,

1685, 23 L.Ed.2d 291 (1969); and 'the Constitution does not provide life tenure

for those performing judicial functions in military trials,' U.S. ex rel. Toth v.

Quarles, 350 U.S. 11, 17, 76 S.Ct. 1, 5, 100 L.Ed. 8 (1955).

19 'The same confluence of practical considerations that dictated the result in

(American Ins. Co. v. Canter, supra), has governed the decision in later casessanctioning the creation of other courts with judges of limited tenure,' Glidden

Co. v. Zdanok, 370 U.S. 530, 547, 82 S.Ct. 1459, 1471, 8 L.Ed.2d 671 (1962),

such as the Court of Private Land Claims, United States v. Coe, 155 U.S. 76, 85


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IV

—86, 15 S.Ct. 16, 19, 39 L.Ed. 76 (1894); the Choctaw and Chickasaw

Citizenship Court, Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43

L.Ed. 1041 (1899); Ex parte Joins, 191 U.S. 93, 24 S.Ct. 27, 48 L.Ed. 110

(1903); Wallace v. Adams, 204 U.S. 415, 27 S.Ct. 363, 51 L.Ed. 547 (1907);

courts created in unincorporated districts outside the mainland, Downes v.

Bidwell, 182 U.S. 244, 266—267, 21 S.Ct. 770, 778—779, 45 L.Ed. 1088

(1901); Balzac v. Porto Rico, 258 U.S., at 312—313, 42 S.Ct., at 348—349,and the Consular Courts established by concessions from foreign countries, In

re Ross, 140 U.S. 453, 464—465, 480, 11 S.Ct. 897, 900—901, 905, 35 L.Ed.

581 (1891).

20 Whatever may be true in other instances, however, it is strongly argued that

O'Donoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356(1933), constrains us to hold that all of the courts of the District of Columbia

must be deemed Art. III courts and that the judges presiding over them must be

appointed to serve during their good behavior in accordance with the

requirements of Art. III. O'Donoghue involved the question whether the judges

of the District of Columbia's Supreme Court and Court of Appeals were

constitutionally protected from having their salaries reduced by an Act of

Congress. This Court, over three dissents and contrary to extensive prior dicta,

see Ex parte Bakelite Corp., 279 U.S. 438, 450, 49 S.Ct. 411, 413, 73 L.Ed. 789(1929); Butterworth v. Hoe, 112 U.S. 50, 5 S.Ct. 25, 28 L.Ed. 656 (1884);

Keller v. Potomac Electric Power Co., 261 U.S. 428, 43 S.Ct. 445, 67 L.Ed.

731 (1923); Federal Radio Comm'n v. General Electric Co., 281 U.S. 464, 50

S.Ct. 389, 74 L.Ed. 969 (1930), held that the two courts under consideration

were constitutional courts exercising the judicial power of the United States

and that the judges in question were not subject to the salary reduction

legislation as they would have been had they been judges of legislative courts.

21 We cannot agree that O'Donoghue governs this case.13 The District of

Columbia courts there involved, the Supreme Court and the Court of Appeals,

had authority not only in the District, but also over all those controversies, civil

and criminal, arising under the Constitution and the statutes of the United

States and having nationwide application. These courts, as this Court noted in

its opinion, were 'of equal rank and power with those of other inferior courts of

the fedthose of other inferior courts of the federal system . . ..' O'Donoghue,

supra, 289 U.S., at 534, 53 S.Ct., at 744. Relying heavily on congressionalintent, the Court considered that Congress, by consistently providing the judges

of these courts with lifetime tenure, had indicated a 'congressional practice

from the beginning (which) recognize(d) a complete parallelism between the


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V

courts of the District (of Columbia) and the District and Circuit Courts of

Appeals of the United States.' Id., at 549, 53 S.Ct., at 750. Moreover, these

courts, constituted as they were, and being closer to the legislative department,

'exercise a more extensive jurisdiction in cases affecting the operations of the

general government and its various departments,' id., at 535, 53 S.Ct., at 744,

and were the only courts within the District in which District inhabitants could

exercise their 'right to have their cases arising under the Constitution heard anddetermined by federal courts created under, and vested with the judicial power

conferred by, Art. III.' Id., at 540, 53 S.Ct., at 746.

22 The case before us is a far cry from O'Donoghue. Here Congress has expressly

created two systems of courts in the District. One of them is made up of the

United States District Court for the District of Columbia and the United States

Court of Appeals for the District of Columbia Circuit, which are constitutional

courts manned by Art. III judges to which the citizens of the District must or may resort for consideration of those constitutional and statutory matters of

general concern which so moved the Court in O'Donoghue. The other system is

made up of strictly local courts, the Superior Court and the District of Columbia

Court of Appeals. These courts were expressly created pursuant to the plenary

Art. I power to legislate for the District of Columbia. D.C.Code Ann. § 11—

101(2) (Supp. V, 1972), and to exercise the 'powers of . . . a state government in

all cases where legislation is possible.' Stoutenburgh v. Hennick, 129 U.S. 141,

147, 9 S.Ct. 256, 257, 32 L.Ed. 637 (1889).

23 The O'donoghue Court had before it District of Columbia courts in which the

consideration of 'purely local affairs (was) obviously subordinate and

incidental.' O'Donoghue, supra, 289 U.S., at 539, 53 S.Ct. at 740. Here, on the

other hand, we have courts the focus of whose work is primarily upon cases

arising under the District of Columbia Code and to other matters of strictly

local concern. They handle criminal cases only under statutes that are

applicable to the District of Columbia alone. O'Donoghue did not concern itself with courts like these, and it is not controlling here.

24 It is apparent that neither this Court nor Congress has read the Constitution as

requiring every federal question arising under the federal law, or even every

criminal prosecution for violating an Act of Congress, to be tried in an Art. III

court before a judge enjoying lifetime tenure and protection against salaryreduction. Rather, both Congress and this Court have recognized that state

courts are appropriate forums in which federal questions and federal crimes

may at times be tried; and that the requirements of Art. III, which are


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applicable where law of national applicability and affairs of national concern

are at stake, must in proper circumstances give way to accommodate plenary

grants of power to Congress to legislate with respect to specialized areas having

particularized needs and warranting distinctive treatment. Here, Congress

reorganized the court system in the District of Columbia and established one set

of courts in the District with Art. III characteristics and devoted to matters of

national concern. It also created a wholly separate court system designed primarily to concern itself with local law and to serve as a local court system

for a large metropolitan area.

25 From its own studies, Congress had concluded that there was a crisis in the

judicial system of the District of Columbia, that case loads had become

unmanageable, and that neither those matters of national concern nor those of

strictly local cognizance were being promptly tried and disposed of by the

existing court system. See, e.g., 115 Cong.Rec. 25538 (1969); 116 Cong.Rec.8091—8092 (1970).14 The remedy in part, was to relieve the regular Art. III

courts, that is, the United States District Court for the District of Columbia and

the United States Court of Appeals for the District of Columbia Circuit, from

the smothering responsibility for the great mass of litigation, civil and criminal,

that inevitably characterizes the court system in a major city and to confine the

work of those courts to that which, for the most part, they were designed to do,

namely, to try cases arising under the Constitution and the nationally applicable

laws of Congress. The other part of the remedy, equally essential, was toestablish an entirely new court system with functions essentially similar to

those of the local courts found in the 50 States of the Union with responsibility

for trying and deciding those distinctively local controversies that arise under

local law, including local criminal laws having little, if any, impact beyond the

local jurisdiction. S.Rep. No. 91—405, pp. 1—3, 5, 18; H.R.Rep. No. 91—907,

pp. 23—24, 33.

26 Furthermore, Congress, after careful consideration, determined that it preferred,and had the power to utilize, a local court system staffed by judges without

lifetime tenure. S.Rep. No. 91—405, supra, at 17—18; H.R.Rep. No. 91—907,

supra, at 44. Congress made a deliberate choice to create judgeships with terms

of 15 years, D.C.Code Ann. § 11—1502 (Supp. V, 1972), and to subject judges

in those positions to removal or suspension by a judicial commission under

certain established circumstances. Id., §§ 11—1502, 11—1521 et seq. It was

thought that such a system would be more workable and efficient in

administering and discharging the work of a multifaceted metropolitan courtsystem. See S.Rep. No. 91—405, supra, at 8—11; H.R.Rep. No. 91—907,

supra, at 35—39.


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27 In providing for fixed terms of office, Congress was cognizant of the fact that

'virtually no State has provided' for tenure during good behavior, S.Rep. No. 91

—405, supra, at 8, see H.R.Rep. No. 91—907, supra, at 38, the District of

Columbia Court of Appeals noting that 46 of the 50 States have not provided

life tenure for trial judges who hear felony cases, 290 A.2d, at 578 n. 12, and

the provisions of the Act, with respect to court administration and to judicial

removal and suspension, were considered by some as a model for the States.

115 Cong.Rec. 25538 (1969). See Hearings on H.R. 13689 and 12854 before

Subcommittee No. 1 of the House Committee on the District of Columbia, 91st

Cong., 1st Sess., pt. 1, pp. 69, 71 (1969).

28 We do not discount the importance attached to the tenure and salary provisions

of Art. III, but we conclude that Congress was not required to provide an Art.

III court for the trial of criminal cases arising under its laws applicable only

within the District of Columbia. Palmore's trial in the Superior Court was

authorized by Congress' Art. I power to legislate for the District in all cases

whatsoever. Palmore was no more disadvantaged and no more entitled to an

Art. III judge than any other citizen of any of the 50 States who is tried for a

strictly local crime. Nor did his trial by a nontenured judge deprive him of due

process of law under the Fifth Amendment any more than the trial of the

citizens of the various States for local crimes by judges without protection as to

tenure deprives them of due process of law under the Fourteenth Amendment.

29 The judgment of the District of Columbia Court of Appeals is affirmed.

30 So ordered.

31 Affirmed.

32 Mr. Justice DOUBLAS, dissenting.

33 Appellant, indicted for carrying a dangerous weapon in violation of D.C.Code

Ann. § 22—3204, was tried and convicted in the Superior Court of the District

of Columbia, an Art. I court created by Congress1 under the District of

Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473. His

timely objection is that he was tried, convicted, and sentenced by a court not

established under Art. III.

The judges of the court that convicted him


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34 —hold office for a term of fifteen years,2 not for lie as do Art. III judges;

35 —unlike Art. III judges,3 their salaries are not protected from diminishment

during their continuance in office;

36 —unlike Art. III judges, they can be removed from office by a five-member Commission4 through less formidable means of procedure than impeachment.

While two of the five members must be lawyers (one a member of the District

Bar in active practice for at least five of the ten years prior to his appointment

and one an active or retired federal judge serving in the District) the other three

may be laymen. One of the three must be a layman. D.C.Code Ann. § 11 1522

(Supp. V, 1972).

37 In other words, these Superior Court judges are not members of theindependent judiciary which has been one of our proudest boasts, by reason of

Art. III. The safeguards accorded Art. III judges were designed to protect

litigants with unpopular or minority causes or litigants who belong to despised

or suspect classes. The safeguards surround the judge and give him a measure

of protection against the hostile press, the leftist or rightist demands of the party

in power, the glowering looks of those in the top echelon in whose hands rest

the power of reappointment.

38 In the Constitutional Convention of 1787 it was proposed that judges 'may be

removed by the Executive on the application by the Senate and House of

Representatives.' The proposal was defeated only Connecticut voting for it.

Wilson apparently expressed the common sentiment: 'The Judges would be in a

bad situation if made to depend on any gust of faction which might prevail in

the two branches of our Government.'5

39 Without the independence granted and enjoyed by Art. III judges, a federal judge could more easily become the tool of a ravenous Executive Branch. This

idea was reflected in Reports by Congress in 1965 and 1966,6 sponsoring a law

that would give lifetime tenure to federal judges in Puerto Rico. The House

Report stated:7

40 '. . . Federal litigants in Puerto Rico should not be denied the benefit of judges

made independent by life tenure from the pressures of those who might

influence his chances of reappointment, which benefits the Constitution

guarantees to the litigants in all other Federal courts.'

41 Art. I 8 cl. 17 of the Constitution rovides: 'The Con ress shall have Power


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. . . To exercise exclusive Legislation . . . over such District . . . as may . . .

become the Seat of the Government of the United States . . ..' This legislative

power is plenary, giving Congress authority to establish the method by which

the District of Columbia will be governed, and to alter from time to time the

form of that government. District of Columbia v. Thompson Co., 346 U.S. 100,

104—110, 73 S.Ct. 1007, 1009—1012, 97 L.Ed. 1480.

42 Legislative courts may be given executive and administrative duties, the

examples being well known. But if they are given 'judicial Power,' as are the

judges of the present Superior Court of the District, those trials have guarantees

that are prescribed by the Constitution and Bill of Rights. First, as to jury trial,

Art. III says: 'The Trial, of all Crimes . . . shall be by Jury.' But trial by jury is

also guaranteed by the Sixth Amendment in all criminal prosecutions. Even Mr.

Justice McReynolds and Mr. Justice Butler, not known as Libertarians, thought

'all' meant 'all,' not permitting the exclusions of so-called 'petty' offenses.District of Columbia v. Clawans, 300 U.S. 617, 633, 57 S.Ct. 660, 665, 81

L.Ed. 843. Congress may not deprive an accused of that protection in a District

of Columbia trial. District of Columbia v. Colts, 282 U.S. 63, 74, 51 S.Ct. 52,

53, 75 L.Ed. 177; Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223.

43 The Fifth Amendment provides for the right to indictment; and Congress may

not dispense with that right for a local criminal offense in the District of

Columbia. United States v. Moreland, 258 U.S. 433, 42 S.Ct. 368, 66 L.Ed.

700.

44 The Sixth Amendment's guarantee extends to speedy and public trials, the right

of confrontation compulsory process and the assistance of counsel '(i)n all

criminal prosecutions.'

45 The Fifth Amendment guarantees one against double jeopardy and gives the privilege against self-incrimination 'in any criminal case,' and guarantees that no

one shall 'be deprived of life, liberty, or property, without due process of law.'

46 The Fourth Amendment protects '(t)he right of the people to be secure . . .

against unreasonable searches and seizures . . ..'

47 The Eighth Amendment says that 'Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.'

48 Few, if any, of these guarantees, I assume, would be applicable to Art. I

tribunals exercising legislative or administrative functions. But are any of them


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inapplicable in criminal prosecutions where the 'judicial Power' of the United

States is exercised?

49 I have been unable to see how that is possible. Yet if those aspects of 'judicial

Power,' as the term is used in Art. III, are all applicable, how can the

requirements for an independent judiciary be made an exception? For it is as

clearly required by Art. III for any exercise of 'judicial Power' as are the other guarantees.

50 The legislative history of the District of Columbia Court Reform and Criminal

Procedure Act of 1970 makes abundantly clear that one main purpose was the

creation of some political leverage over Superior Court judges. As the Senate

Report states:

51 'In drafting the tenure provision of the amended bill, the committee was

conscious both of the inexactness of the art of judicial selection and of the

importance of tenure in attracting the most competent men to the bench. The

committee recognized that the constitutional requirement of 'good behavior'

tenure has played a significant role in the historic high quality of the Federal

bench. On the other hand, the committee was aware that virtually no State has

provided such tenure for its judges, an apparent recognition that the opportunity

to review the quality of a judge's performance also has its obvious advantages.

The committee, therefore, sought a tenure provision that would combine the

attractiveness of the federal system with the opportunity for some review of the

judge's work.

52 'At present, the only means available to rid the local bench of a sick or venal

judge is through the process of impeachment by the House of Representatives

and trial by the U.S. Senate. To believe that the Congress at this time in our

history has the time to police the local judiciary through the impeachment

process is just not realistic. That process has not even proven viable when the

conduct of Federal, good-behavior tenure judges is drawn into question.' S.Rep.

No. 91—405, pp. 8, 11.

53 In O'Dodoghue v. United States, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356, the

Court held unconstitutional an Act of Congress reducing the salaries of trial and

appellate judges in the District of Columbia. It held that inherent in the

separation of powers was the idea that 'the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the

other departments.' Id., at 530, 53 S.Ct., at 743. Since the District was formed

of portions of two of the original States, the Court concluded it was 'not


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reasonable to assume that the cession stripped them of these (rights, guarantees

and immunities of the Constitution), and that it was intended that at the very

seat of the national government the people should be less fortified by the

guaranty of an independent judiciary than in other parts of the Union.' Id., at

540, 53 S.Ct., at 744. The Court concluded that while Congress could not

confer administrative or legislative functions on Art. III courts, it could grant

such functions to District courts by reason of Art. I. Id., at 546, 53 S.Ct., at 749.But that power, it held, may not be used 'to destroy the operative effect of the

judicial clause within the District.' Ibid. The present Act does precisely that.

Hence today we make a major retreat from O'Donoghue.

54 Much is made of the fact that many States (about three-fourths of them) have

their judges at all levels elected by the people. That was one of the basic

Jacksonian principles. But the principle governing federal judges is strongly

opposed.8 Hamilton stated the proposition in No. 79 of the Federalist (J. Cookeed. 1961):

55 'Next to permanency in office, nothing can contribute more to the independence

of the judges than a fixed provision for their support. The remark made in

relation to the president, is equally applicable here. In the general course of

human nature, a power over a man's subsistence amounts to a power over his

will. And we can never hope to see realised in practice the complete separation

of the judicial from the legislative power, in any system, which leaves theformer dependent for pecuniary resources on the occasional grants of the latter.

The enlightened friends to good government, in every state, have seen cause to

lament the want of precise and explicit precautions in the state constitutions on

this head. Some of these indeed have declared that permanent salaries should be

established for the judges; but the experiment has in some instances shewn that

such expressions are not sufficiently definite to preclude legislative evasions.

Something still more positive and unequivocal has been evinced to be requisite.

The plan of the convention accordingly has provided, that the judges of theUnited States 'shall at stated times receive for their services a compensation,

which shall not be diminished during their continuance in office.'

56 'This, all circumstances considered, is the most eligible provision that could

have been devised. It will readily be understood, that the fluctuations in the

value of money, and in the state of society, rendered a fixed rate of

compensation in the constitution inadmissible. What might be extravagant to

day, might in half a century become penurious and inadequate. It was thereforenecessary to leave it to the discretion of the legislature to vary its provisions in

conformity to the variations in circumstances; yet under such restrictions as to

put it out of the power of that body to change the condition of the individual for


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the worse. A man may then be sure of the ground upon which he stands, and

can never be deterred from his duty by the apprehension of being placed in a

less eligible situation. The clause which has been quoted combines both

advantages. The salaries of judicial offices may from time to time be altered, as

occasion shall require yet so as never to lessen the allowance with which any

particular judge comes into office, in respect to him.'

57 That theory is opposed to the Jacksonian philosophy concerning election of

state judges. But the present statutory scheme for control over Superior Court

judges is even opposed to the Jacksonian theory. In the District of Columbia the

people do not elect these Art. I judges. Nor do they 'recall' them as is done in

some States. The Superior Court judges are named by the President and

confirmed by the Senate and they are removable by a commission appointment

by the President. The Superior Court judge has no opportunity to put his

problems, his conduct, his behavior on the bench to the people. The gun of thecommission is held at his head. All of the normal vices of a dependent,

removable judiciary are accentuated in the District of Columbia.

58 The matter of 'law and order' naturally assumes in the minds of a majority of

the people in the District an acute and special problem. A minority, however,

sits as overlord, causing tensions to mount. The case of Harry Alexander, a

judge on the Superior Court, has become prominent. Great pressures have been

put on him to conform—or else. The problem goes not only to the viability of life in the District but to the vitality of the guarantees in Art. III and in the Bill

of Rights. Those guarantees run to every 'person'; and the judges on the Art. III

courts who sit in the District dispense justice evenly and never undertake to

ration it. But some judges, like the Bill of Rights, are in the minds of some a

threat to our security.

59 They, however, insure our security by administering justice evenhandedly. The

ideals of Art. III and the Bill of Rights provide the mucilage which holdsmajorities and minorities together in the federal segment of our Nation, and

make tolerable the existence of nonconformists who do not walk to the measure

of the beat of the Chief Drummer.

60 We take a great step backward today when we deprive our federal regime in the

District of that judicial independence which helps insure fearless and

evenhanded dispensation of justice. No federal court exercising Art. III judicial

power should be made a minion of any cabal that from accidents of politics

comes into the ascendancy as an overlord of the District of Columbia. That

effort unhappily succeeds today and is in disregard of one of our most

cherished constitutional provisions.


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61 As Mr. Justice Black and I put it in our dissent in Glidden Co. v. Zdanok, 370

U.S. 530, 589, 598, 82 S.Ct. 1459, 1493, 1498, 8 L.Ed.2d 671, the essential

problem in dealing with a 'judicial' function exercised by an Art. I court

concerns the standards and procedures employed. If the power exercised is

'judicial power' defined in Art. III, as was true in the present case, then the

standards and procedures must conform to Art. III, one of which is an

independent judiciary.

62 There have been many proposals in our history that are kin to those approved

today; and the important ones are reviewed by Prof. Kurland.9 To date efforts

to tamper with the federal judiciary have not been successful, unless it be the

bizarre decision of this Court in Chandler v. Judicial Council, 382 U.S. 1003,

1004, 86 S.Ct. 610, 15 L.Ed.2d 494, in which Mr. Justice Black and I dissented.

The States, of course, have mostly gone the other way.10 But as Prof. Kurland

observed:11

63 '(T)he various devices that the States have recently adopted for policing their

judiciaries are little more than polite blackmail, suggestions that the bar is

unhappy with the judge's behavior and he'd better shape up or else. I shudder to

think how (easily) the federal courts might have been deprived of the services

of Judge Learned Hand under such a system as California's. For politeness to

counsel and a willingness to tolerate fools gladly were not among his virtues,

and it is only such virtues and that of regular attendance at the court house thatthe policing systems seem capable of evoking from timid judges.'

64 The way to achieve what is done today is by constitutional amendment.

President Andrew Johnson in 1868 said;12

65 'It is strongly impressed on my mind that the tenure of office by the judiciary of

the United States during good behavior for life is incompatible with the spirit of

republican government, and in this opinion I am fully sustained by the evidence

of popular judgment upon this subject in the different States of the Union.

66 'I therefore deem it my duty to recommend an amendment to the Constitution

by which the terms of the judicial officers would be limited to a period of years,

and I herewith present it in the hope that Congress will submit it to the people

for their decision.'

67 Manipulated judiciaries are common across the world, especially in communist

and fascist nations. The faith in freedom which we profess and which is

opposed to those ideologies assumes today an ominous cast. It is ominous


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The section provided:

'No person shall within the District of Columbia carry either openly or

concealed on or about his person, except in his dwelling house or place of

business or on other land possessed by him, a pistol, without a license therefor

issued as hereinafter provided, or any deadly or dangerous weapon capable of

being so concealed. Whoever violates this section shall be punished as provided

in section 22—3215, unless the violation occurs after he has been convicted in

the District of Columbia of a violation of this section or of a felony, either in the

District of Columbia or in another jurisdiction, in which case he shall be

sentenced to imprisonment for not more than ten years.'

Before passage of the District of Columbia Court Reform and Criminal

Procedure Act of 1970, the local court system consisted of one appellate court

and three trial courts, two of which, the juvenile court and the tax court, were

courts of special jurisdiction. The third trial court, the District of Columbia

Court of General Sessions, was one of quite limited jurisdiction, its criminal

jurisdiction consisting solely of that exercised concurrently with the United

States District Court over misdemeanors and petty offenses, D.C.Code Ann. §11—963 (1967). The court's civil jurisdiction was restricted to cases where the

amount in controversy did not exceed $10,000, and it had jurisdiction over

cases involving title to real property only as part of a divorce action. Id., §§ 11

—961 and 11—1141. The judgments of the appellate court, the District of

Columbia Court of Appeals, were subject to review by the United States Court

of Appeals for the District of Columbia Circuit. Id., § 11—321.

The United States District Court for the District had concurrent jurisdictionwith the Court of General Sessions over most of the criminal and civil matters

handled by that court, id., §§ 11—521, 11—522, and 11—523, and had

exclusive jurisdiction over felony offenses, even though committed in violation

because it indirectly associates the causes of crime with the Bill of Rights rather

than with the sociological factors of poverty caused by unemployment and

disemployment, the abrasive political tactics used against minorities, the blight

of narcotics and the like. Those who holds the gun at the heads of Superior

Court judges can retaliate against those who respect the spirit of the Fourth

Amendment and the Fifth Amendment and who stand firmly against the ancient

practice of using the third degree to get confessions and who fervently believethat the end does not justify the means.

68 I would reverse the judgment below.

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of locally applicable laws, id., § 11—521. Thus, the District Court was filling

the role of both a local and federal court.

Seeking to improve the performance of the court system, Congress, in Title I of

the Reorganization Act, invested the local courts with jurisdiction equivalent to

that exercised by state courts. S.Rep.No. 91—405, pp. 2—3; H.R.Rep.No.91—

907, pp. 23—24. The three former trial courts were combined into the newSuperior Court of the District of Columbia, D.C.Code Ann. § 11—901 (Supp.

V, 1972), which was vested, with a minor exception, id., § 11 502(3), with

exclusive jurisdiction over all criminal cases, including felonies, brought under

laws applicable exclusively to the District, id., § 11—923(b). Its civil

jurisdiction reached all civil actions and any other matter at law or in equity,

brought in the District of Columbia, except those in which exclusive

jurisdiction was vested in the United States District Court. Id., § 11—921. The

local appeals court, the District of Columbia Court of Appeals, wouldultimately not be subject to review by the United States Court of Appeals, id., §

11—301, and was declared to be the 'highest court of the District of Columbia'

for purposes of further review by this Court. Id., § 11—102.

In addition to the shift in jurisdiction, the number of local judges was increased,

their tenure was lengthened from 10 to 15 years, and their salaries were

increased and fixed at a percentage of that of judges of the United States courts.

Id., §§ 11—702, 11 703, 11—903, 11—904, and 11—1502; D.C.Code Ann. §§

11—702, 11—902, 11—1502, 47—2402 (1967). The Reorganization Actestablished a Commission on Judicial Disabilities and Tenure to deal with

suspension, retirement, or removal of local judges, D.C.Code Ann. § 11—1521

et seq. (Supp. V, 1972). It also provided for improved administration of the

local courts, id., § 11—1701 et seq., including authorization for an Executive

Officer responsible for the administration of the local court system. Id., § 11—

1703.

The 15-year term is subject to the provision for mandatory retirement at age 70.D.C.Code Ann. § 11—1502 (Supp. V, 1972).

Title 28 U.S.C. § 1257 provides:

'Final judgments or decrees rendered by the highest court of a State in which a

decision could be had, may be reviewed by the Supreme Court as follows:

'(1) By appeal, where is drawn in question the validity of a treaty or statute of

the United States and the decision is against its validity.

'(2) By appeal, where is drawn in question the validity of a statute of any state

on the ground of its being repugnant to the Constitution, treaties or laws of the

3

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United States, and the decision is in favor of its validity.

'(3) By writ of certiorari, where the validity of a treaty or statute of the United

States is drawn in question or where the validity of a State statute is drawn in

question on the ground of its being repugnant to the Constitution, treaties or

laws of the United States, or where any title, right, privilege or immunity is

specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.

'For the purposes of this section, the term 'highest court of a State' includes the

District of Columbia Court of Appeals.'

An express provision 'would have been easy,' Farnsworth v. Territory of

Montana, 129 U.S. 104, 113, 9 S.Ct. 253, 255, 32 L.Ed. 616 (1889), as

demonstrated by specific provisions in the United States Code concerning the

District of Columbia. Cf. 28 U.S.C. § 1363, added to the United States Code by§ 172(c)(1) of the Reorganization Act, 84 Stat. 590, where for purposes of c. 85

dealing with the jurisdiction of the United States District Courts, it is provided

that 'references to laws of the United States of Acts of Congress do not include

laws applicable exclusively to the District of Columbia.' See also the treatment

of the District of Columbia as a 'State' for purposes of diversity jurisdiction, 28

U.S.C. § 1332(d), and the equally discrete provision of 28 U.S.C. § 1451, added

to the Code by § 172(d)(1) of the Reorganization Act, 84 Stat. 591, which

provides that for purposes of the removal provisions, the Superior Court of theDistrict of Columbia is to be considered a 'State court'; and the District of

Columbia is deemed to be a 'State.'

Because we postponed the question of our jurisdiction over this appeal to

consideration of the merits, rather than entering an unrestricted notation of

probable jurisdiction, there is no basis for inferring, from our finding this

appeal improper, that our initial order must nevertheless be taken as having

granted certiorari on any of the issues presented. Hence, our denial of the writwith respect to the Fourth Amendment claim, rather than a dismissal, is proper.

Cf. Mishkin v. New York, 383 U.S. 502, 512 513, 86 S.Ct. 958, 965—966, 16

L.Ed.2d 56 (1966).

Kendall v. United States, 12 Pet. 524, 619, 9 L.Ed. 1181 (1838); Mattingly v.

District of Columbia, 97 U.S. 687, 690, 24 L.Ed. 1098 (1878); Gibbons v.

District of Columbia, 116 U.S. 404, 407, 6 S.Ct. 427, 428, 29 L.Ed. 680 (1886);

Shoemaker v. United States, 147 U.S. 282, 300, 13 S.Ct. 361, 391, 37 L.Ed.170 (1893); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 435, 52

S.Ct. 607, 609, 76 L.Ed. 1204 (1932); O'Donoghue v. United States, 289 U.S.

516, 545, 53 S.Ct. 740, 748, 77 L.Ed. 1356 (1933).

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Sections 1 and 2 of Art. III state:

'Section 1. The judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may from time to

time ordian and establish. The Judges, both of the supreme and inferior Courts,

shall hold their Offices during good Behaviour, and shall, at stated Times,

receive for their Services, a Compensation, which shall not be diminishedduring their Continuance in Office.

'Section 2. The judicial Power shall extend to all Cases, in Law and Equity,

arising under this Constitution, the Laws of the United States, and Treaties

made, or which shall be made, under their Authority;—to all Cases affecting

Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty

and maritime Jurisdiction;—to Controversies to which the United States shall

be a Party;—to Controversies between two or more States;—between a State

and Citizens of another State;—between Citizens of different States;—between

citizens of the same State claiming Lands under Grants of different States, and

between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

'In all Cases affecting Ambassadors, other public Ministers and Consuls, and

those in which a State shall be Party, the supreme Court shall have original

Jurisdiction. In all the other Cases before mentioned, the supreme Court shall

have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and

under such Regulations as the Congress shall make.

'The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and

such Trial shall be held in the State where the said Crimes shall have been

committed; but when not committed within any State, the Trial shall be at such

Place or Places as the Congress may by Law have directed.'

This was the view of the Court prior to Martin v. Hunter's Lessee, 1 Wheat.

304, 4 L.Ed. 97 (1816). Turner v. Bank of North America, 4 Dall. 7, 1 L.Ed.718 (1799); United States v. Hudson, 7 Cranch 32, 3 L.Ed. 259 (1812). And the

contrary statements in Hunter's Lessee, supra, at 327—339, did not survive later

cases. See for example, in addition to Cary v. Curtis, 3 How. 236, 11 L.Ed. 576

(1845), quoted in the text, Rhode Island v. Massachusetts, 12 Pet. 657, 721—

722, 9 L.Ed. 1233 (1838); Sheldon v. Sill, 8 How. 441, 12 L.Ed. 1147 (1850);

Case of Sewing Machine Companies, 18 Wall. 553, 577—578, 21 L.Ed. 914

(1874); Kline v. Burke Construction Co., 260 U.S. 226, 233—234, 43 S.Ct. 79,

82—83, 67 L.Ed. 226 (1922).

Clinton v. Englebrecht, 13 Wall. 434, 447, 20 L.Ed. 659 (1872); Hornbuckle v.

Toombs, 18 Wall. 648, 655—656, 21 L.Ed. 966 (1874); Reynolds v. United

States, 98 U.S. 145, 154, 25 L.Ed. 244 (1879); The City of Panama, 101 U.S.

8

9

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453, 460, 25 L.Ed. 1061 (1880); McAllister v. United States, 141 U.S. 174, 180

—184, 11 S.Ct. 949, 951—952, 35 L.Ed. 693 (1891); United States v.

McMillan, 165 U.S. 504, 510, 17 S.Ct. 395, 398, 41 L.Ed. 805 (1897); Romeu

v. Todd, 206 U.S. 358, 369, 27 S.Ct. 724, 728, 51 L.Ed. 1093 (1907); Glidden

Co. v. Zdanok, 370 U.S. 530, 544—548, 82 S.Ct. 1459, 1469—1471, 8 L.Ed.2d

671 (1962).

See, e.g., Baker v. United States, 1 Pinney (Wis.) 641 (1846); United States v.

Tom, 1 Or. 26 (1853); Franklin v. United States, 1 Colo. 35 (1867); Pickett v.

United States, 1 Idaho 523 (1874); United States v. Reynolds, 1 Utah 226

(1875); Fisher v. United States, 1 Okl. 252, 31 P. 195 (1892).

See, e.g., Territory of Oregon v. Coleman, 1 Or. 191 (1855); Gile v. People, 1

Colo. 60 (1867); People v. Waters, 1 Idaho 560 (1874); People v. Shafer, 1

Utah 260 (1875); Ex parte Larkin, 1 Okl. 53, 25 P. 745 (1891).

We should note here that in Glidden Co. v. Zdanok, supra, it was urged that

Art. III forbade the assignment of a judge of the Court of Customs and Patent

Appeals to try a criminal case arising under the District of Columbia Code. The

Court of Appeals ruled that even if the judge in question was not an Art. III

judge, Art. I, § 8, cl. 17, was sufficient authority for his assignment to try cases

in the District. The United States there urged that this was true at least with

respect to laws arising under the District of Columbia Code rather than under a

law of national application. Mr. Justice Harlan, for himself and JusticesBrennan and Stewart, found it unnecessary to reach this question, but

considered it an open one, for he expressly reserved 'intimating any view as to

the correctness of the holding below . . ..' 370 U.S., at 538, 82 S.Ct., at 1466.

Apparently, for him, O'Donoghue had not foreclosed the issue with respect to

the trial of the criminal case under the District of Columbia Code. Mr. Justice

Clark, for himself and the Chief Justice, also thought the question open. See

id., at 589 n. 4, 82 S.Ct., at 1493.

The Senate Committee noted that notwithstanding the visiting judge program,

'an unsurpassed number of days on the bench per district court judge,' and as

many as 12 out of the 14 District Court judges being 'assigned full time to the

trial of local felony offenses,' the backlog of criminal cases in the United States

District Court numbered 1,669, and the median time lapse from filing to final

disposition in felony trials in that court was more than triple that in other

district courts. Additionally, the median time for civil jury trial in the District

Court was nearly double that in other district courts. Though there had been anincrease in the number of felonies committed in the District of Columbia, there

was a concomitant decrease in the number of felonies prosecuted. S.Rep.No.91

—405, supra. at 2—3.

11

12

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D.C.Code Ann. § 11—101 (Supp. V, 1972) provides, 'The judicial power in the

District of Columbia is vested in . . . (2) The following District of Columbia

courts established pursuant to article I of the Constitution: (A) The District of

Columbia Court of Appeals. (B) The Superior Court of the District of

Columbia.'

D.C.Code Ann. § 11—502 (Supp. V, 1972).

By Art. III, § 1, federal judges 'hold their Offices during good Behaviour, and

shall, at stated Times, receive for their Services, a Compensation, which shall

not be diminished during their Continuance in Office.'

A Commission on Judicial Disabilities and Tenure is established with the

power 'to suspend, retire, or remove' one of these judges. D.C.Code Ann. § 11

—1521 (Supp. V, 1972). The President names three members, the

Commissioner of the District names one, and the Chief Judge of the DistrictCourt names the fifth. There are three alternate members. The President names

the Chairman. Id., § 11—1522. All members are appointed for a term of six

years. Id., § 11—1523. A judge must be removed if he has committed a felony

and been finally convicted. Id., § 11 1526(a)(1). He shall be removed if the

Commission finds

'(A) willful misconduct in office,

'(B) willful and persistent failure to perform judicial duties, or

'(C) any other conduct which is prejudicial to the administration of justice or

which brings the judicial office into disrepute.' Ibid.

He shall be involuntarily retired if '(1) the Commission determines that the

judge suffers from a mental or physical disability (including habitual

intemperance) which is or is likely to become permanent and which prevents, or

seriously interferes with, the proper performance of his judicial duties, and (2)

the Commission files in the District of Columbia Court of Appeals an order of

involuntary retirement and the order is affirmed on appeal or the time within

which an appeal may be taken from the order has expired.' Id., § 11—1526(b).

The Act also contains elaborate provisions for the suspension of the judge

without salary, or with retirement salary, or with salary dependent on the

circumstances described in §§ 11 1526(c)(1), (2), and (3). The Act contains the

procedure which the Commission must follow and the notice and hearing towhich the judge is entitled. Id., § 11—1527.

Madison, 2 Journal of the Federal Convention 257 (G. Hunt ed. 1908).

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H.R.Rep.No.135, 89th Cong., 1st Sess.; S.Rep.No.1504, 89th Cong., 2d Sess.

H.R.Rep.No.135, supra, n. 6, at 2.

See Brown, The Rent in Our Judicial Armor, 10 Geo.Wash.L.Rev. 127 (1941);

Hyde, Judges: Their Selection and Tenure, 22 N.Y.U.L.Q.Rev. 389 (1949); E.

Haynes, Selection and Tenure of Judges (1944); Kurland, The Constitution andthe Tenure of Federal Judges: Some Notes from History, 36 U.Chi.L.Rev. 665

(1969).

James Bryce, writing in 1888, said:

'Any one of the three phenomena I have described—popular elections, short

terms, and small salaries—would be sufficient to lower the character of the

judiciary. Popular elections throw the choice into the hands of political parties,

that is to say, of knots of wirepullers inclined to use every office as a means of rewarding political services, and garrisoning with grateful partisans posts which

may conceivably become of political importance. Short terms . . . oblige the

judge to remember and keep on good terms with those who have made him

what he is, and in whose hands his fortunes lie. They induce timidity, they

discourage independence.' 1 American Commonwealth, c. 42, p. 507 (3d ed.

1905).

Kurland, supra, n. 8.

The California system is discussed by Jack E. Frankel, Executive Secretary of

the California Commission On Judicial Qualifications, in Removal of Judges:

California Tackles an Old Problem, 49 A.B.A.J. 166 (1963). Mr. Frankel was

quoted with approval in the Senate Report proposing the District of Columbia

Court Reform and Criminal Procedure Act of 1970. S.Rep.No.91—405, p. 11.

Kurland, supra, n. 8, at 668.

8 Messages and Papers of the Presidents 3841 (J. Richardson ed. 1897.)

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Palmore v. United States, 411 U.S. 389 (1973)

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